Libby trial - who got set up?

Back to Tom Maguire at JustOneMinute for the trial's first potential bombshell.  Mr. Maguire has picked up on a instance where NBC's David Gregory may have publicly misspoken regarding his knowledge of Plame's identity.

We are relying on the live-blogging of the Libby trial by the always-astute EmptyWheel, who is covering the opening statement of Libby's attorney, Ted Wells, but we have a potential blockbuster absolutely guaranteed to get exactly zero headlines.

Ted Wells drops the news that David Gregory of NBC received a leak about Plame from Ari Fleischer on July 11:

Now shows Ari dislcoses to David Gregory on July 11 that Ambassador Wilson's wife worked at the CIA. Fleischer tells that before Libby was ever indicted. "I told David Gregory." Talks about time difference, says Ari leaked to Gregory first.

Now let's flash back to October 29, 2005, just after the Libby indictment.  Russert has gathered the Washington Bureau to discuss the case on CNBC's "Tim Russert Show".  At the time, I excerpted the transcript and suggested they were rehearsing their cover story.  So let's cut to David Gregory:

GREGORY: And it is interesting--it's also interesting, I should just point out, that nobody called me at any point, which is unfortunately...
WILLIAMS: Apparently not.
GREGORY: ...not the point.
RUSSERT: Does anybody ever?
GREGORY: But I just wanted to note that.
RUSSERT: I've been meaning to talk to you about that.

Nobody called him except Ari Fleischer.  Baffling.

(Emphasis above is mine.)

If I remember correctly, Tim Russert is in charge of NBC News, which would mean David Gregory reports directly to him.  You might think that would give Russert authority to exercise editorial control.  You might also think he would have to know what's going on in order to do that.  How convincing will he be when he testifies that he had no idea?

So once again I have to wonder, what exactly hath Fitzgerald wrought here, with this prosecution of Scooter Libby?  The first time I asked the question was over a year ago.

The indictment pits Libby's word against the word of several sacred cows in the mainstream press.  Russert, Pincus, and Kristoff are a few of the candidates that come to mind.  Unless the prosecutor is going to try to make his case without using any witnesses, some of these people will have to take the stand to testify.  According to the Wall Street Journal (subscription).

"It's Mr. Libby's right to a fair trial versus editorial privileges, and that isn't a close question," said one attorney closely involved in the case. "Most judges will say the right to a fair trial wins. ... We're over the hump of the identity" of secret sources, the attorney added. "Now we're talking about credibility" of the reporters.

If Libby's defense team is worth its salt they will mount an effective attack on the credibility of the prosecution's witnesses.  It's hard for me to imagine there's not a gold mine of reasonable doubt to be had. 

So what has Fitzgerald done?  Has he shown himself to be a partisan hack by indicting a Bush Administration official for impeding the investigation of a non crime?  Or has he found a way to put the press itself on trial?

Fitzgerald and Judge Walton have claimed that the case is only about whether or not Libby lied to the FBI and the grand jury.  Plame's undercover status and other related issues are not relevant.  Yet Fitzgerald's opening statement raises some of those other issues.  From Outside the Beltway:

Despite having repeatedly argued during voir dire that the Iraq War and surrounding politics were irrelevant to the case, prosecutor Patrick Fitzgerald is repeatedly referring to the State of the Union address, the infamous “sixteen words,” Niger, uranium, and so forth during his opening arguments. He offered a disclaimer that it is “just background,” but it is nonetheless obviously going to be a major part of the trial.

Based on my vast experience watching "Law and Order" and "Perry Mason" on TV, I wonder that Judge Walton will be able to forbid the defense from basing arguments on the justifications for the Iraq War now that Fitzgerald has put those issues in front of the jury with his opening statement.  If the defense team is free to demonstrate the incoherence of Ambassador Joe's original accusations, it seems to me they have a good shot at convincing the jury that Libby and the White House were determined to refute Wilson's accusations on their merits, not punish him and Val. 

And if the defense really takes a wrecking ball to Wilson's accusations, who in that collection of journalists on the witness list will have any credibility at all.  After all, they've preached his story as if it's the gospel for over three years now?  Has Fitzgerald set them up?